2011 (7) TMI 618 - AT - Central Excise

Appeal granted on grounds of natural justice violation, remanded for reevaluation. Correction of duty demand and penalty accepted.

The appeal was allowed by way of remand to the Commissioner (Appeals) after the Tribunal found a violation of the principle of natural justice due to ... Non serving of notice - appeal dismissed on ground of limitation - Held that:- Principle of natural justice has been violated here as when the notice of personal hearing has not been served on the appellants, therefore, proper service of order in original by pasting at the factory gate on 6.12.2006 does not arise. Therefore, the appeal filed by the appellants before the Commissioner (Appeals) is within time as they have filed appeal after obtaining order in original on 15.2.2007 and filed the appeal on 12.4.2007 which is within 60 days i.e. period of limitation. Therefore, the appeal filed by the appellants is within time. Matter sent back to the Commissioner (Appeals) to decide the issue on merits - in favour of assessee by way of remand. Issues:Correction of duty demand and penalty amount, violation of principle of natural justice, proper service of notice, appeal time-barred, appeal filed within time, remand to Commissioner (Appeals).Correction of Duty Demand and Penalty Amount:The appellants filed a miscellaneous application seeking correction of the duty amount and penalty imposed, stating that there was an inadvertent error in the recorded amounts. The learned Advocate argued for rectification of the amounts, which were mistakenly mentioned as Rs.1,22,187/- instead of Rs.1,22,791/-. The application was accepted, and the appeal memorandum was amended accordingly.Violation of Principle of Natural Justice:The Advocate contended that the principle of natural justice was violated as the notice of personal hearing was not properly served on the appellants. The order in original mentioned that the factory had been closed for over two years, and the notice was pasted at the factory gate, which was deemed improper service. The appellants only became aware of the order through a communication from the Inspector at their head office, New Delhi.Proper Service of Notice and Appeal Time-Barred:The Respondent argued that the service of the order in original by pasting it at the factory premises constituted proper service, making the appeal time-barred. However, the Tribunal found that since the notice of personal hearing was not served on the appellants, the service of the order in original by pasting it at the factory gate was irrelevant. The appeal was filed within the 60-day limitation period after obtaining the order in original, and thus, it was not time-barred.Remand to Commissioner (Appeals):After considering both sides and reviewing the records, the Tribunal concluded that the principle of natural justice had indeed been violated. The matter was remanded to the Commissioner (Appeals) for a decision on the merits, taking into account the submissions of the appellants regarding the violation of the principle of natural justice. The appellants were directed to appear before the Commissioner (Appeals) for finalizing the issue on a specified date.In conclusion, the appeal was allowed by way of remand, and the miscellaneous application for correction of duty demand and penalty amount was disposed of. The Tribunal set aside the impugned order and directed the Commissioner (Appeals) to reconsider the case on its merits, focusing on the violation of the principle of natural justice.